The will of Ellen L. Bunce gave to her nephew a legacy of $647.54. A controversy has arisen between the executors of the will and the comptroller as to the amount of the tax that should be imposed upon the transfer made by this bequest. The executors insist that the tax should be only on the excess of the legacy over $500, while the comptroller argues that the whole amount of the legacy should be taxed.
Section 220 of the Tax Law, Cons. Laws, ch. 60 (as amended by L. 1916, chs. 323, 548) provides for taxing transfers made by decedents of their estates; section 221 grants certain exemptions from the tax; and section 221-a prescribes how the tax shall be computed.
Section 221 says:
"There shall also be exempted from and not subject to the provisions of this article all property or any beneficial interest therein so transferred to any father, *Page 33 mother, husband, wife, widow or child of the decedent, grantor, donor or vendor if the amount of the transfers to such father, mother, husband wife, widow or child is the sum of five thousand dollars or less; but if the amount so transferred to any father, mother, husband, wife, widow or child is over five thousand dollars, the excess above these amounts, respectively, shall be taxable at the rates set forth in the next section."
Section 221-a of the law which fixes the rate of the transfer tax is divided into three paragraphs. The first paragraph fixes the tax on transfers of property in excess of $5,000 to the father, mother, husband, wife, widow or child of the decedent as mentioned in section 221. The paragraph also fixes the tax on transfers of property in excess of the value of $500 to any lineal descendant of the decedent other than a child, but the paragraph contains no words which exclude from taxation transfers of property less than $500 in value to such descendant similar to the words found in the foregoing quotation from section 220 with regard to transfers of property of less than $5,000 in value to the persons therein mentioned.
Paragraphs two and three of section 221-a fix the taxes on transfers of property in excess of the value of $500 to a brother or sister of the decedent or any person other than those enumerated in paragraph one. Paragraphs two and three contain no words which exclude from taxation a transfer of property less than $500 in value. The legacy to the nephew in this case falls within the provisions of paragraph number three and the whole amount thereof is taxable.
It is not necessary to inquire what moved the legislature in the one case to exempt from taxation transfers of property of less than $5,000 in value and in the other case to tax the whole amount of the transfer if in excess of *Page 34 the value of $500. It is sufficient to say that such is the plain import of the enactment.
The order appealed from should be reversed and proceeding remitted to Surrogate's Court to fix tax in accordance with this opinion, with costs in this court and in Appellate Division.
HISCOCK, Ch. J., CHASE, CARDOZO, McLAUGHLIN, CRANE and ANDREWS, JJ., concur.
Order reversed, etc.